Buthgamu Mudiyanselage (Migration)

[2020] AATA 525

Buthgamu Mudiyanselage (Migration) [2020] AATA 525 (26 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ransilu Swaranga Perera Buthgamu Mudiyanselage
Mrs Hansika Nimodi Jayawardhana Jagodage

CASE NUMBER:  1725227

HOME AFFAIRS REFERENCE(S):          BCC2017/3027506

MEMBER:Warren Stooke AM

DATE:26 February 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

·cl.485.221 of Schedule 2 to the Regulations

·cl.485.222 of Schedule 2 to the Regulations

Statement made on 26 February 2020 at 9:39am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work stream – Motor Mechanic (General) – Australian study requirement – Diploma of Business – ‘closely related’ to nominated occupation – individual subjects within course – 90% directly related to nominated occupation – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.15F; Schedule 2, cl 485.221, 485.222

CASES
Talha v Minister for Immigration and Border Protection [2015] FCAFC 115

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 28 September 2017 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 22 August 2017. Visa Class VC contains Subclass 485. (For visa applications made before 1 July 2013, there is also a Subclass 487, however that subclass is not relevant to the present matter.) The criteria for the grant of a Subclass 485 visa are set out in Part 485 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy cl.485.222 of Schedule 2 to the Regulations because the delegate found that the most recently completed course of study was not closely related to the occupation of Motor Mechanic (General) – ANZSCO 321211.

4. The applicants appeared before the Tribunal on 13 February 2020 to give evidence and present arguments.

5. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

6. At the commencement of the hearing, the Tribunal confirmed that the applicant had read the delegate’s decision of 28 September 2017 and that he understood the content of the decision. In this regard, the applicant stated that he understood the delegate refused the visa “because the course done last was not related to the occupation I applied for”.

7. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for further reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream which include cl.485.221 and 485.222 of Schedule 2 to the Regulations. These require that the applicant must have satisfied the ‘Australian study requirement’ in the 6 months immediately preceding the day the visa application was made (cl.485.221); and secondly, that each degree, diploma or trade qualification used to satisfy that requirement must be closely related to the applicant’s nominated skilled occupation (cl.485.222). The issue in the present case is whether the applicant meets those requirements.

9. The applicant is a 33 year old from Sri Lanka, who arrived in Australia in January 2011, as a dependent on his spouse’s visa.

10. The applicant provided evidence that he had completed the following courses:

    a.Diploma of Business - completed 23 July 2017

    b.Certificate III in Automotive Engineering and Technology - completed 11 December 2016

    c.Diploma of Automotive Technology - completed 1 January 2016

    d.Certificate IV in Automotive Mechanical Diagnosis - completed 1 May 2015

    e.Certificate III in Automotive Electrical Technology - completed 31 December 2014

    f.Certificate IV in Business - completed 8 September 2013

11. The applicant confirmed to the Tribunal in evidence that he has successfully acquired trade recognition from Trades Recognition Australia for his occupation on 19 August 2017.

12. The applicant stated that he worked part-time whilst he was studying with SDP Auto Care and Ultra-Tune Mackay, Queensland, where he is still engaged.

13. The applicant stated that he works 40 hours per week and is paid a salary of $57,000 and when he works Saturday’s he is paid at the rate of double-time.

14. The Tribunal asked the applicant how is a Diploma of Business related to the occupation of Motor Mechanic (General) and the applicant responded:

    a.Whilst studying for the Diploma of Business the applicant worked for 20 hours for an owner that did not have mechanical knowledge and because of his experience he was able to work by himself;

    b.The working experience as the sole employee meant that the applicant had to deal directly with customers;

    c.The applicant had no intention when studying for the Diploma to apply for a 485 visa;

    d.The Diploma of Business included the following modules:

    i.Managing Risk;

    ii.Develop work priorities;

    iii.Manage meetings;

    iv.Manage business documents design and development;

    v.Develop a media plan;

    vi.Ensure a safe workplace;

    vii.Manage recruitment, selection and induction processes.

    e.The duties performed in the workshop, include the training of apprentices and how to explain the work scope to customers re diagnostic findings;

    f.Prepare insurance and incident reports for insurance based work;

    g.Attend in-service tuition courses with Repco to provide updates on technological developments and to learn new things that are then explained and taught to apprentices, who are under the  applicant’s control;

    h.Undertake a supervisory role with apprentices and organise the work;

    i.Conduct roadworthy checks, as the applicant is the only authorised officer, which includes checking the work of other mechanics.

15. The applicant provided evidence that he spends 6 hours of the working day on the tools, but this will depend upon the nature of the work. As such, time is spent checking the work of the apprentices when not directly on the tools.

16. The applicant conceded to the Tribunal following a question concerning the content of the applicant’s Diploma of Business course that half of the subjects were mechanical and the rest related to management.

17. The applicant was asked if he performed the tasked identified in the ANZSCO occupational descriptor for Motor Mechanic (General) and he confirmed to the Tribunal that he undertakes all of the following tasks in his current occupation as a Motor Mechanic (General):

    a.detecting and diagnosing faults in engines and parts

    b.dismantling and removing engine assemblies, transmissions, steering mechanisms and other components, and checking parts

    c.repairing and replacing worn and defective parts and reassembling mechanical components, and referring to service manuals as needed

    d.performing scheduled maintenance services, such as oil changes, lubrications and engine tune-ups, to achieve smoother running of vehicles and ensure compliance with pollution regulations

    e.reassembling engines and parts after being repaired

    f.testing and adjusting mechanical parts after being repaired for proper performance

    g.diagnosing and testing parts with the assistance of computers

    h.may inspect vehicles and issue roadworthiness certificates or detail work required to achieve roadworthiness

18. Further, the applicant acknowledged that the occupational descriptor for Motor Mechanic (General) – ANZSCO 321211 does not include supervision.

    Representatives Submission

19. The representative for the applicant made the following submissions to the Tribunal:

    a.The relevant regulations do not refer to ANZSCO;

    b.‘closely related’ would include the Diploma of Business undertaken by the applicant;

    c.ANZSCO needs to reflect the contemporary labour market, in terms of job descriptors;

    d.The subjects in the schedule of subjects studied are directly relevant except for two items relating to media. As such, ninety per cent of the subjects are relevant;

    e.The FCCA has considered major subject groupings;

    f.The nature of work that a mechanic does at a particular level, includes:

    i.Safety;

    ii.Risk management;

    iii.Meetings;

    iv.Managing disputes with clients;

    v.Effective communication skills;

    vi.Verbal and written skills; and

    vii.Customer service skills.

20. The representative also submitted that the skills are transferrable and are related to the occupation of Motor Mechanic.

    Does the applicant meet the Australian study requirement?

21. Under r.1.15F(1) of the Regulations, a person satisfies the ‘Australian study requirement’ if the person satisfies the Minister that the person has completed 1 or more degrees, diplomas or trade qualifications for award by an Australian educational institution as a result of a course or courses:

    ·that are registered courses; and

    ·that were completed in a total of at least 16 calendar months; and

    ·that were completed as a result of a total of at least 2 academic years study; and

    ·for which all instruction was conducted in English; and

    ·that the applicant undertook while in Australia as the holder of a visa authorising the applicant to study.

22. ‘Degree’, ‘diploma’, ‘trade qualification’, ‘registered course’, ‘completed’ and ‘academic year’ are all defined terms (see rr.1.03, 1.15F and 2.26AC(6), and cl.485.111). ‘Completed’, in relation to a degree, diploma or trade qualification, means having met the academic requirements for its award (r.1.15F(2)). For the purposes of this case, one ‘academic year’ is at least a total of 46 weeks, being the duration of a course registered under the Education Services for Overseas Students Act 2000 (LIN 19/085 of the Register of Instruments - Skilled visas).

23. The Tribunal is satisfied that the Diploma of Business course undertaken with Education Access Australia in the 6 months immediately prior to application is a recognised course and has a CRISCOS ID of 024508, which is consistent with the requirements of r.1.03 of the Regulations.

24. Further, the Tribunal is satisfied that the combination of courses were completed in accordance with r.1.15F(2)) of the Regulations as the courses were completed in a total period of at least 16 calendar months and over a period of more than two years of study.

25. The Tribunal is satisfied that the courses were conducted in the English language, whilst the applicant was the holder of a valid visa.

26. The Tribunal finds that the applicant satisfied the Australian study requirement in the 6 months immediately preceding the date of the visa application. Therefore, the applicant meets cl.485.221.

    Is the qualification ‘closely related’ to the nominated occupation?

27. The evidence provided by the applicant demonstrated that the primary qualification, as a Motor Mechanic (General), was undertaken by the applicant prior to further studies toward a Diploma of Business with a specific focus on enhancing the applicant’s knowledge toward the application of his trade skill in the workplace.

28. Further, the Tribunal has pared back the course descriptor of  the applicant’s specific “Diploma of Business” course and considered the individual modules offered within the course provided by Education Access Australia. In this regard, the course included the following subjects that are considered by the Tribunal to be ‘closely related’ to the applicant’s occupation, particularly given the applicant’s expanded role to mentor and develop apprentices:

    i.Managing Risk;

    ii.Develop work priorities;

    iii.Manage meetings;

    iv.Manage business documents design and development;

    v.Ensure a safe workplace;

    vi.Manage recruitment, selection and induction processes.

29. The Tribunal ordinarily does not accept prima face that a “Diploma of Business” is ‘closely related to a trade based occupation without considering the course’s subject content. However, in the circumstances of this particular case, where the modules included in the Diploma level course are (as advocated by the representative) ninety per cent directly related to the occupation, then the course can be regarded as ‘closely related’. As such, the Tribunal accepts that this specific Diploma of Business provided by Education Access Australia and described to the Tribunal in the hearing and undertaken by the applicant, does contain a majority of individual subjects that are ‘closely related’ to the occupation of Motor Mechanic (General) – ANZSCO 321211.

30. The Tribunal is satisfied that the applicant has maintained a continuity of study that supports his occupation as a Motor Mechanic (General) – ANZSCO 321211 and that the substantive majority of all the studies undertaken by the applicant were ‘closely related’ for the purposes of the ANZSCO: 332211.

31. The Tribunal, in determining whether the course undertaken by the applicant is ‘closely related’ to the descriptor for a Motor Mechanic (General) – ANZSCO 321211, is satisfied that the courses of study undertaken by the applicant, in the broader context of the Motor Mechanic (General) occupation can be viewed as ‘closely related’. In this regard, the Tribunal is guided by the decision of the Full Court in Talha v Minister for Immigration and Border Protection [2015] FCAFC 115 (25 August 2015) (Griffiths, Mortimer and Beach JJ), which includes the following:

    “[53] Of course, it is ultimately a matter for the primary decision-maker and, on a statutory review, the Tribunal, to decide whether Mr Talha’s Australian studies are “closely related” to his nominated skilled occupation. But in carrying out the evaluative exercise it is critical that the whole of Mr Talha’s Australian studies be compared with the whole of his nominated occupation, as established in previous decisions of the Court, including Dhillon at [20] per Allsop CJ, Murphy and Pagone J, Constantino at [26] per Jacobson J and Bhanot at [29] per Perry J. As the Full Court stated in Dhillon at [20]:

    The words “closely related” are not specifically defined in the Regulations or the relevant statutes but require, and call attention to, the connection between two things. The task to be undertaken to determine whether a qualification is “closely related” to a nominated occupation does not require the finding of an exact correspondence between the two but it does require “that the whole of the qualification must be compared with the whole of the occupation to determine whether the necessary close relationship exists”: Constantino v Minister for Immigration and Border Protection [2013] FCA 1301, [26]. That is what the Tribunal did. The Tribunal informed itself about the nature of the skilled occupation of pastry cook by considering the Australian Standard Classification of Occupations (ASCO) and compared that with the course content submitted by Mr Dhillon for the units undertaken by him in the business management course completed at the Nova Institute. At [91] the Tribunal considered that the requirement of a qualification being “closely related” to the nominated occupation required that the relationship between the skills gained in the qualification were more than merely complementary to the occupation or that the skills could be used in that occupation. The Tribunal did not ask itself an incorrect question when determining whether the qualifications relied upon by Mr Dhillon were closely related to his nominated profession of pastry cook (see Bhanot v Minister for Immigration and Border Protection [2014] FCA 848, [21], [24], [38]) and on the materials its finding was open to the Tribunal.
    
    (Emphasis added).

    The point of distinction between Dhillon and this proceeding is that the Tribunal here did not properly construe and apply the relevant parts of the ANZSCO Code which related to Mr Talha’s nominated skill occupation.”

32. The Tribunal finds that the applicant’s study for the specified qualification for the occupation of Motor Mechanic (General) – ANZSCO 321211, is supported by the attainment of both Certificate level courses in the trade and the subsequent Diploma of Business course provided by Education Access Australia.

33. On the basis of the evidence provided to the Tribunal concerning the subject matters of the qualifications supporting the application, the Tribunal accepts that the overwhelming majority of the individual subjects undertaken in this Diploma of Business have provided the applicant with specific knowledge relevant to the performance of his trade, including safety and risk management; interfacing with apprentices; knowledge pertaining to compliance with legislative requirements within the industry; workshop planning; invoicing, costing and financially controlling the execution of trade work, together with trade skill enhancement facilitated by trade suppliers and the trade development of apprentices, which is a fundamental task undertaken by experienced and competently accredited tradespersons.

34. As the applicant’s qualification is closely related to the nominated skilled occupation, the applicant meets cl.485.222.

35. Accordingly, cl.485.222 is met.

36. On the basis of the above findings, the Tribunal finds that the applicant meets the requirements of cl.485.221 and 485.222. The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

37. As the primary applicant has met the criteria pertaining to cl.485.222 of Schedule 2 to the Regulations, it follows that the secondary applicant is a member of a family unit that satisfies this criteria and accordingly directs that the secondary applicant be reconsidered on this basis.

    DECISION

38. The Tribunal remits the applications for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criterion for a Subclass 485 visa:

    ·cl.485.221 of Schedule 2 to the Regulations; and

    ·cl.485.222 of Schedule 2 to the Regulations.

    Warren Stooke AM
    Member